388 COMPETITION LAW IN TOURISM 2.4. Confusion Acts Generally, every act that causes confusion as to the indication of a product, commercial activity or establishment of a third party, whether intentional or not, is deemed as being unfair. This confusion can be direct, for example when the consumer gets confused regarding the product or service it is acquiring; or indirect, when the consumer acknowledges the differences between the products but wrongfully assumes the existence of a commercial relationship between the producers. For direct confusion, the consumer will not mistake one product for another because of the shape or its general appearance (that would be imitation), but for the means used to identify it, mostly marks as discussed below. This means that in confusion cases, courts will have to carefully analyse the way in which the consumer’s decision was affected by the confusion act. In this sense, it is remarkable that unlike trademark confusion cases, where the likelihood of confusion is subjectively appreciated, confusion acts must be objectively proven. The requirement of the unfairness as a constitutive element implies that factors such as the means of publicity used, price differences and the advice from the seller or the lack thereof, are all taken into account by the courts. In these cases, confusion must result in an unfair practice with commercial repercussions, hence the need to prove that it is objectively benefiting one business in the detriment of another. As such, while the likelihood of confusion is subjectively appreciated, its effects must be objectively proven in order to deem the confusing conduct as unfair. 2.5. Enforcement Limitations The main advantage to enforcing confusion as an UC act and not a trademark infringement action is the achieved scope. While UC measures against confusion acts cover all kinds of confusion regarding means for commercial identification, trademark infringement actions are limited to those recognised in trademark law. Many legal systems, for instance, do not include trade dress in their trademark law; however, it is possible to enforce UC laws against confusion acts and avoid the use of the third party’s trade dress. The same principle applies to non-traditional marks and other distinctive signs that rarely hold the same level of protection in every country. On the other hand, overlap between UC and trademark infringement actions is an endless issue. Although trademark confusion is specifically provided in most trademark laws, their limitations as to the scope and applicability have
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